STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

WANDA D BLOOR, Applicant

HILLSBORO SENTRY ENTERPRISE, Employer

THRESHERMENS MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 90070531

The adminstrative law judge (ALJ) issued his findings of fact and interlocutory order in this case on June 7, 1993, following hearings on October 6, 1992, and April 26, 1993. The ALJ found an average weekly wage rate of $180, and ordered payment of compensation for temporary disability, permanent partial disability, and medical expenses.

The employer and the insurer (collectively, the respondent) petitioned for commission review of the ALJ's findings and order. The respondent contended that the ALJ erred with respect to the nature and extent of disability, and with respect to the average weekly wage rate. The commission affirmed the ALJ's figure for the average weekly wage rate, but reduced the amount of permanent disability award.

The respondent then sought judicial review. The court of appeals concluded that the commission did not adequately explain the legal basis for its decision regarding the average weekly wage for part-time workers. The court noted that the commission identified certain criteria in construing an administrative rule on the point in its memorandum opinion. However, the court also observed that the commission neither specifically defined the term "regularly scheduled class" as used in the rule, nor explained why or whether the criteria identified by the commission in its memorandum opinion must be present to establish the existence of such a class. The court concluded that the commission had not clarified its legal standard, and remanded the case to the commission for further proceedings. Threshermen's Mutual Insurance Company and Hillsboro Sentry Enterprise v. LIRC and Wanda Bloor, court of appeals case no. 96-0735-FT, slip opinion at pages 3-4 (District IV, August 29, 1996).

ACTION ON REMAND

The commission has carefully reviewed the entire record in this case and considered the issues identified by the court of appeals. In compliance with instructions of the court of appeals on remand, the commission amends its June 29, 1994 decision (the commission decision) as follows:

1. Delete the first paragraph of the Modified Findings of Fact in the commission decision and substitute:

"The first paragraph of the ALJ's FINDINGS OF FACT is deleted and the following substituted therefor:

`The applicant was born in 1954. She was one of four part-time employes of Hillsboro Sentry Enterprises (the employer), a business that prints shopper newspapers. The applicant did photo developing and circulation work. Prior to the date of injury, she also had another part-time job with a church.

`The applicant's part-time coworkers were a pressman, a type-setter, and a post-press worker. Each had different basic duties. Each part-time worker had a set pattern of days he or she usually worked, although no two of the part-timers worked the same pattern of days. The hours the part- timers worked varied from week with workload. The applicant, the type-setter and the post-press worker were all paid $4.50 per hour; the pressman received a higher wage because his job involved more skill. None of the part-time workers received fringe benefits. The employer also had four other employes who were full-time, salaried and received fringe benefits.

`The employer's wage records, exhibit 1, show that the applicant's bi-weekly hours varied from a high of 59.25 to a low of 13.75. Excluding the "outliers", the more typical variation was between 38.75 and 26.75 hours bi-weekly. This variation, the employer's owner testified, was due to fluctuations in workload. Assuming the bi-weekly hours were evenly divided between weeks, Bloor normally worked between 13 and 19 hours per week and possibly as many as 30 hours in some weeks. Over a one year period, the applicant's averaged $72.75 per week in pay for 16.166 hours.

`An injured worker's temporary disability rate is based on his or her average weekly wage. The general rule is that part-time hours are expanded to full-time hours, normally assumed to be 40 hours per week, for purposes of determining the statutory average weekly wage. Section 102.11 (1)(a) and (c), Stats. (1)     That expanded weekly wage is then used to calculate the temporary disability rate under sec. 102.11 (1)(intro.), Stats., and 102.43, Stats. Two statutory exceptions to this general schemework are contained in sec. 102.11 (1)(f)1 and 2, Stats. (2)

`Section 102.11 (1)(f)2, Stats., applies to a part-time worker who restricts his or her availability to part-time work and who is not otherwise employed. Such a worker's temporary disability benefits may not exceed the average weekly wage of the part-time employment. This section, then, technically does not prevent expansion, but sets an upper limit on the temporary disability as calculated from the expanded wage. Section 102.11 (1)(f) 2, Stats., does not apply in this case because the applicant had a second part-time job at the time of her injury.

`Section 102.11 (1)(f)1, Stats., sets a floor on a part-time worker's weekly earnings, and provides that those earnings may not be less than 24 times the normal hourly earnings at the time of injury or the worker's actual part-time earnings, whichever is greater. This "floor," obviously, applies to part-time workers whose average weekly earnings are not expanded to 40 hours under sec. 102.11 (1)(a) and (c), Stats. Whether a part-time worker's wages are not expanded, and thus subject to the "floor" depends on whether the part-time worker is "a member of a regularly scheduled class of part-time employes." Section DWD 80.51 (4), Wis. Adm. Code.

`Section DWD 80.51 (4), Wis. Adm. Code recognizes the proposition enunciated by the Wisconsin Supreme Court in Carr's Inc. v. Industrial Commission, 234 Wis. 466 (1940), reh'g denied, 234 Wis. 473 (1940): certain part-time workers may comprise such a distinct and separate class of employes that their "particular employment" may reasonably be viewed as that class. Section DWD 80.51 (4), Stats., thus provides that a part-time worker's average weekly wage is not expanded but may be subject to the 24 hour minimum workweek under s. 102.11 (1)(f), Stats., only if the worker is a member of a regularly scheduled class of part-time employes. In all other cases the average weekly wage for part-time employment is "expanded" or calculated on the basis of normal full-time employment in such job.

`Thus, secs. 102.11 (1)(f)2 [should be 1- JJS], Stats., and DWD 80.51 (4), Wis. Adm. Code provide an exception to the general rule that wages are expanded to full time. The presumption of expansion is retained in the rule unless the party seeking to restrict such expansion establishes that the worker is part of a "regularly scheduled class of part-time employes". If the worker falls into such a class, the worker's average weekly wage is not expanded, but based on actual hours worked, subject to the 24 hour floor.

`In applying secs. 102.11 (1)(f)2 [should be 1- JJS], Stats., and DWD 80.51, Wis. Adm. Code the department adheres to a policy set out in its Methods of Determining Compensation Wage (3) which provides, in relevant part:

"V. Part-Time Employees

"A. Bring wage up to normal full-time employment for that type of work setting, unless the following situations apply:

"1. If the employe is part of a regularly scheduled class of part-time employes, raise to minimum of 24 hour workweek or to actual hours if higher than 24. To be considered part of a regularly scheduled class of part-time employes, an employe must be a member of a group of part-time employes who do the same type of work and who maintain the same type of regular work schedule, of the same hours as each other. Note that at least 10% of total employes must work the same schedule to constitute a class, in the same classification or job title of work. There can't be more than a 5 hour variance from week to week."

`The department and commission have consistently applied the above policy and principles in determining whether to expand a worker's wages. Thus the term "regularly scheduled class of part- time workers" is appropriately defined based on the policy as follows:

'A worker is a member of a regularly scheduled class of part-time employes if the worker is one of a group of part- time workers who have the same work duties and classification or title, and work the same number of hours and arrangement of hours as each other as part of a common schedule. A worker's hours may vary from the scheduled hours, but by not more than five hours, from week to week. To be considered a class the group of part-time workers must comprise at least ten percent of the employer's total work force.

`The factors cited in this definition parallel many of the facts present in the Carr's Inc. Consideration of the facts of that case is appropriate because sec. DWD 80.51 (2)[should be (4)-JJS], Wis. Adm. Codes and the term "regularly scheduled class of part-time employes" are logical outgrowths of the term "separate and distinct class" as used in Carr's Inc. Moreover, use of the term "class of part-time employes" in the rule, as well as the wording of sec. 102.11 (1)(a) and (c), Stats., demands some similarity in duties and job classification or title; it is not enough that the employer simply have part-time workers and full-time workers and treats the two groups differently.

`Stated another way, the rule is most reasonably construed as requiring a distinct class or group of part-time workers defined along the lines of duties and job description. While all of an employer's part-time workers might constitute a class under certain circumstance, an employer does not create a class by simply providing different pay or benefits to its part-time workers. If every part-time worker was meant to be a member of the class, then sec. 102.11 (1)(a) or (c), Stats., would have been simply drafted to define average weekly wage to mean the actual weekly wage paid on average, subject to a 24-hour floor.

`By the same token, the adverb "regularly" in the term "regularly scheduled class of part-time employes" must be construed to modify "scheduled" rather than "part-time." That is, the term is construed as requiring a schedule that is regular, not as simply requiring a group of workers who regularly work part-time. For this reason, the definition includes the requirements of a common schedule, and restricts the amount of departure permitted from that schedule.

`Finally, the definition requires a minimum work force percentage in a class. Allowing small groups of workers to be a "class" is inconsistent with underlying assumption of the court in Carr's Inc. that the "separate and distinct class" constituted not just a few jobs but a "particular employment."

`The next issue is whether the applicant in this case is a member of a regularly scheduled class of part-time workers such that her average weekly earnings for determining her temporary disability rate are limited to the greater of 24 times her normal hourly earnings or her actual part-time earnings. In the present case, none of the part- time workers have the same duties, nor do they have the same job classification. There is no common schedule under which the applicant, the pressman, the post-press person or the type-setter worked the same arrangement and number of hours as each other. Thus, while the employer has some part-time workers and some full-time workers, the part-time workers do not constitute a regularly scheduled class under sec. DWD 80.51 (4), Wis. Adm. Code.

`In sum, neither of the exceptions in sec. 102.11 (1)(f), Stats., apply in this case. Accordingly, the applicant's average weekly wage rate is expanded to $180, based on a forty hour week at $4.50 per hour.'"

"The second through eight paragraphs of the ALJ's FINDINGS OF FACT are affirmed and reiterated as if set forth herein."

2. Delete the second through seventh paragraphs of the Memorandum Opinion in the commission decision.

The commission makes no change to the average weekly wage rate as a result of this action on remand. The remaining Modified Findings of Fact in the commission's June 29, 1994 decision are unaffected. Consequently, the amount of compensation awarded by the commission in its June 29, 1994 Modified Interlocutory Order remains the same.

NOW, THEREFORE, the Labor and Industry Review Commission make this

ORDER

The commission amends its June 29, 1994 decision conform to the foregoing. As amended, the Modified Findings of Fact and Modified Interlocutory Order in the commission's June 29, 1994 decision remain in effect.

Dated and mailed December 6, 1996
ND § 4.8  § 4.11

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

cc: ATTORNEY PETER K LAWRENCE

ATTORNEY JAMES A MEIER
MEIER WICHKEM SOUTHWORTH & LYONS SC

Appealed to Circuit Court. Affirmed January 17, 1996.

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Footnotes:

(1)( Back ) Section 102.11(1)(a), Stats., provides that "The average weekly earnings shall be arrived at by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employe was engaged at the time of the employe's injury." Section 102.11 (1)(c), Stats., provides that where earnings cannot be determined under par. (a), because, for example, the person has no fixed earnings, or normal full-time days or weeks are not maintained by the employer in the employment in which the employe worked when injured, then earnings shall be "the usual going earnings paid for similar services on a normal full- time basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a)...."

(2)( Back ) Section 102.11 (1)(f), Stats., provides: 1. Except as provided in sub. 2., average weekly earnings may not be less than 24 times the normal hourly earnings at the time of injury. 2. The weekly temporary disability benefits for a part-time employe who restricts his or her availability in the labor market to part-time work and is not employed elsewhere may not exceed the average weekly wages of the part-time employment.

(3)( Back ) The text is from the May 1996, version of the written policy. The June 1988, revision of the policy was basically the same except that it did not include the sentence "There can't be more than a 5 hour variance from week to week."